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There is a third way

Posted by Richard Thursday, November 25, 2004

One wonders why a supposedly Eurosceptic newspaper like the Daily Telegraph should give pride of place to the egregious Denis MacShame, allowing his to peddle his myths in today’s op-ed, but there you go.

Under the heading, "Britain can't pick and choose which bits of law it will obey", MacShame is allowed to expound a thesis of equivalence. He compares Britain’s signing of a vast number of bilateral treaties – all of which, he asserts, limit our sovereignty – with our membership of the European Union.

Adding the NATO treaty to his list, he then particularly identifies that World Trade Organisation, "which can impose trade rules on the national policy of its member states". This, he asserts, represents "a major surrender of unilateral national rights in favour of a supranational rule-making and adjudicating body".

We obey the WTO says MacShame, invoking the Latin, "Pacta sunt servanda – treaties are honoured and obeyed", and then applies the same dictum to the treaties of the European Union, arguing that we cannot be selective. The same principle must apply to them all.

At this point, MacShame rushes on, breathlessly to pour scorn at the Conservative idea of selectively repatriating some of the EU policies, such as fishing, which would put Britain in breach of its legal obligations. "British citizens cannot pick and choose which bits of law they will obey", he asserts. "Similarly, Britain cannot pass legislation that conflicts with international treaties, such as the EU treaties, without being in breach of its solemn treaty obligations".

Therein lies the rub. If you allow MacShame to rush you into this breathless elision, then you are halfway with him. But if you stop at the point where he suggests equivalence, his construct begins to fall apart.

It would be tiresome to rehearse all the difference between NATO and the EU, but the essential point is that NATO cannot compel any nation state to undertake any action – particularly military action – to which it does not agree. As for the WTO, yes there are supranational elements, but the treaties is confined to international trade, and there is no mechanism for directly imposing laws dictating the conduct of individuals within the territories of signatory states.

In other words, there is no equivalence. In its nature, scale and reach, the EU treaties are unique. Only they, and they alone, set up such a comprehensive array of institutions which, collectively, can devise, impose and enforce laws on the individual citizens of the member states, completely by-passing the elected parliaments and, therefore, the will of the people.

Thus, when MacShame rushes on to tell us that "British citizens cannot pick and choose which bits of law they will obey", what he avoids saying is that if "British citizens" do not like particular bits of (national) law, they have the means to change them, not least though the mechanism of a general election, and not forgetting that civil disobedience is a time-honoured, and honourable, tradition.

But, within the construct of the European Union, the British citizen has – individually or collectively – no means of changing the law. The construct is deliberately "democracy proof" and therefore confounds the very system to which we subscribe. On that basis, we have a conflict between the "people", who are not bound by the treaties, and the governments, which are.

It is that conflict that the Conservatives are, albeit reluctantly, being forced to confront and, in an attempt to resolve it, they are proposing the somewhat half-hearted remedy of repealing some of the worst policies of the EU. Effectively, they are trying to ease the shoe, where it pinches most.

That, claims MacShame, cannot be done. You have to accept everything that the EU throws at us, or nothing. It is simply a question of all of nothing. "There is no third way", we concludes.

Would that this were true, and I suspect that, if the "in-out" choice were properly put to the British people, on the back of some honest political leadership, the answer would be unequivocally "out". But, if there is a third way, it lies not in the realms of the legalistic terms of the treaties, but in the politics. As de Gaulle once said, "treaties are like roses and maidens, they all have their day".

The technocrats and the "transies" of this world would have to believe that the world is bound by a new, higher order of international law, which transcends the nations state, and to which formerly sovereign nation states were bound, in the same way that citizrens are bound by their national laws. That is not the case.

Although dressed up in legal terms, treaties are political constructs. They are made by politicians, and they can be broken by politicians, in whole or part. The question then, is what are the consequences of so doing? Properly managed, they could be benign, to the advantage not only of the British people but the peoples of all the member states of the European Union.

That is probably what the likes of MacShame fear most. Once the construct starts unravelling, there is nothing to stop the rest of it falling apart. Thus, MacShame is trying to hold the line. This is a frightened man who, like his comrades, is terrified that any breach in the holy doctrine of the European Union will lead to its eventual downfall.

Tough, Mr MacShame. Like it or not, there is a third way.